Research On Distribution Of Justifiable Defense Burden

At present,the rate of justifiable defense affirmation is low in China's judicial practice.The discussion of justifiable defense mostly focuses on the perspective of criminal dogma.The research on the distribution of the burden of proof is not enough.Therefore,by clarifying the nature of justifiable defense and the connotation of the burden of proof,and drawing on the experience of overseas justifiable defense,this paper constructs the burden of proof distribution system.First of all,clarify the connotation of justifiable defense and the burden of proof.Through understanding the legislative spirit of the justifiable defense system and the experience of distributing the burden of proof abroad,this paper lays a theoretical foundation for solving the problems existing in the judicial practice of the burden of proof of justifiable defense in our country.Secondly,through the empirical study of the "Yu Huan case" occurred so far,in China's judicial practice,the rate of justifiable defense is still low.At the same time,in the judicial practice of justifiable defense,the burden of proof is usually assumed by the accused,which increases the burden of the accused,leads to the lack of justifiable defense.Finally,through the cost-benefit theory of legal economics,the burden of proof is allocated to the prosecution by comparing the cost of justifiable defense.The burden of proof for justifiable defense is divided into the burden of proof and the consequence responsibilities.It comes to the conclusion that the prosecution bears the primary burden of proof and the consequence responsibilitie and the defendant bears the secondary burden of proof.Both the prosecutor and the defender devote themselves to justifiable defense,in order to solve the problem that justifiable defense is hard to be recognized and realize the system value of justifiable defense.